The Fun Never Ends: Prop. 8 found to be Unconstitutional

A federal judge in San Francisco decided today that gays and lesbians have a constitutional right to marry, striking down Proposition 8, the voter approved ballot measure that banned same-sex unions.

U.S. District Chief Judge Vaughn R. Walker said Proposition 8, passed by voters in November 2008, violated the federal constitutional rights of gays and lesbians to marry the partners of their choice.. His ruling is expected to be appealed to the U.S. 9th Circuit Court of Appeals and then up to theU.S. Supreme Court.

“Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment,” the judge wrote. “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

Vaughn added: “Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.”

Ultimately, the judge concluded that Proposition 8 “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

Walker, an appointee of President George H.W. Bush, heard 16 witnesses summoned by opponents of Proposition 8 and two called by proponents during a 2½-week trial in January.

Walker’s historic ruling in Perry vs. Schwarzenegger relied heavily on the testimony he heard at trial. His ruling listed both factual findings and his conclusions about the law.

Voters approved the ban by a 52.3% margin six months after the California Supreme Court ruled that same-sex marriage was permitted under the state Constitution.

The state high court later upheld Proposition 8 as a valid amendment to the state Constitution.

An estimated 18,000 same-sex couples married in California during the months that it was legal, and the state continues to recognize those marriages.

The federal challenge was filed on behalf of a gay couple in Southern California and a lesbian couple in Berkeley. They are being represented by former Solicitor General Ted Olson, a conservative, and noted litigator David Boies, who squared off against Olson in Bush vs. Gore.

A Los Angeles-based group formed to fight Proposition 8 has been financing the litigation.

Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown refused to defend Proposition 8, prodding the sponsors of the initiative to hire a legal team experienced in U.S. Supreme Court litigation.

Backers of Proposition 8 contended that the legal burden was on the challengers to prove there was no rational justification for voting for the measure. They cited as rational a view that children fare best with both a father and a mother.

But defense witnesses conceded in cross-examination that studies show children reared from birth by same-sex couples fared as well as those born to opposite-sex parents and that marriage would benefit the families of gays and lesbians.

In this case, the federal Constitution trumps that of the state. So, a state constitution cannot violate the US Constitution. The appeals process from here will be very interesting.

JOHN WILLIS

My take on the presentation of the opponents of Gay Marriage before the district judge was that they made a rather weak case both factually and legally. This view is shared by well informed legal observors on both sides of the debate .

This case will first be appealed the Ninth Circuit Court of Appeals where it will be heard by a three judge pannel. If the Ninth Circuit approves it will can, but does not have to be heard by what is known as an en banc pannel of eleven judges randomly selected for all the ninth circuit judges.

The Ninth Circuit has a repuation of being a “liberal circuit”. i think that is somewaht of an oversimplification. There are some very able conservative justices apointed by Regan and the two Bushes on the court.(Alex Kozinski and John Noonan for example)

How the court rules when it is heard before a three judge pannel is anybody’s guess. Since the members of the pannel are chosen at random you can get a “conservative” or “liberal” pannel

FYI there are four LDS judges on the court Judge R

http://www.faithpromotingrumor.com Chris H.

The the district judge in this case was a George H W Bush appointee. Also, Ted Olson, a Reagan and George W. Bush veteran, argued the anti-Prop. 8 case…so, party is not a solid indicator on this issue at this point.

JOHN WILLIS

Sorry I hit the send button two early. Again there are four full time LDS Judges on the Ninth Circuit. Judge Richard Paez , a former legal aid attorney appointed by Clinton, Jay Bybee , of torture memo fame, and Milan and Randy Smith both LDS , both from Idaho and G.W. Bush appointees. J Clifford Wallace is also LDS and is on Senior Status(semi-retired)

What this means is that there is a very real chance that an LDS Judge will be on the three judge pannel. If the case is heard en banc,(and I think it will be) an LDS judge will almost certainly be on the 11 judge pannel.

My prediction, which should be taken with a very large grain of salt ,is that the outcome of the gay marriage case depends on which judges are on the three judge pannel.

Again I think the case will be heard on an en banc basis and they will reverse the distict court and uphold proposition 8. I think the U.S. Supreme Court will not grant review.

The church has issued a statement(clearly prepared in advance) in which it says it “regrets” the decision . It did appeal for civility on all sides.

I hope we will be spared the emotions and bogus legal arguments which marked the proposition 8 debate.

We as latter day saints should seriously consider if there really are good secular arguments against gay marriage.

This in no way affects our theological opposition to homosexual behavoir.

Again I hope we will not hear the bogus legal arguments that legalizing gay marriage will force the church to have gay weddings in the Temple. I would refer you to Morris Thurston’s well reasoned arguments on this topic which he produced during the Proposition 8 debate.

Instead of government of the people, by the people, for the people, we now have government of the people, by the judiciary, for the perverse.

http://www.faithpromotingrumor.com Chris H.

or…

government of the mob, by the mob, and for the over dramatic.

kevinf

Just curious, would an LDS judge, if selected for thereview panel, be under pressure to recuse themselves? I’m not a lawyer, just trying to look at this from all angles.

Mark N.

I wonder if, should it happen that one or more of the LDS judges end up on the case, and should it become widely known that they are LDS (I certainly didn’t know about all of them), if there will be public pressure that the LDS judges recuse themselves.

http://www.faithpromotingrumor.com Chris H.

kevinf, no they would not likely be under such pressure. I actually do not think that being LDS would imply that they are in favor of Prop 8…as we can see on the bloggernacle. They may even bend just to show their impartiallity.

Enoch

I think that there is an unfortunate conjunction of Church and State in this matter. I strongly feel that the state should administer civil unions, which govern rights, and religions should oversee marriage.

http://www.faithpromotingrumor.com Chris H.

Enoch,

I do not view marriage as a strictly religious matter. I think it would be unfortunate if we ignored the civic value of marriage.

http://apps.sapiencekb.com/Blog/ Confutus

When did the orderly, law-governed process of amending the California State constitution as set forth by California law become mob rule?

http://www.faithpromotingrumor.com Chris H.

SInce it was left up entirely to the unruly and chaotic referendum/initiative style system set up in California. Anyways, a government of the people, for the people, and by the people implies that it is of and for all of the people. You will not win by playing the Lincoln card on me…

http://www.faithpromotingrumor.com Chris H.

The sentiment expressed by Lincoln in the Gettysburg Address is the basis on the 14th Amendment which was the basis of this ruling.

ed42

If the ‘orderly, law-governed process of amending the California State constitution’ included denying different rights (such as extermination of Mormons) would you still be gong-ho about it?

Enoch

Chris, I agree that there is great social value in marriage. But that value does not justify holding rights hostage to one particular moral value. I think that all relationships should be governed by the principles that make marriage beneficial for society. I actually do not believe in the community’s power to govern sexuality, though I see the power in the community’s celebration of rites such as marriage. I think that a couple (or…) saying “I love you; I am committed to you; I am married to you” should do the job.

Do you think that those who do not believe in marriage should lack rights and benefits because of that? I think Civil Unions is an excellent answer, and anyone who wants a marriage could still have one.

http://Symphonyofdissent.wordpress.com Symphonyofdissent

The big thing here on first glance seems to me that the judge argues that prop 8 fails even the very low burden of rational basis review. This could be good or bad for the anti-prop 8 side on appeal as if the supreme court assumes that rational basis is the proper degree of scrutiny it is much more likely that it will uphold prop-8, but the failure of prop-8 on a rational basis level also shows what a week argument the pro- prop 8 side presented.

Enoch

For the record, I am not anti-marriage per se; I am pro everything that makes a marriage beneficial and wonderful, independent of the social construct of marriage.

http://apps.sapiencekb.com/Blog/ Confutus

Win? You asked for an initial reaction. You got one.

I could argue that the court’s decision is at least twice removed from any notion of popular sovereignty and that the California initiative (as imperfect as the process may be) has a much clearer and shorter line of authority, but what difference would it make? I might also argue that the rights to self defense and religious freedom are rather more fundamental than the right to engage in unreproductive sex, but I don’t expect to “win” that argument either.

el oso

This seems to be a ruling begging to be overturned. The basic ruling is that states cannot write a prohibition of certain types of marriage into their constitution. I do not think that any appeals court (even the 9th circuit) will look favorably upon this type of argument.

As has been mentioned 2 years ago in the bloggernacle, one of the Church’s probable reasons for supporting Prop 8 is to provide clear legal cover for their marriage policies. As of yesterday, no lawyer would dream of filing suit in CA against the church about homosexual marriage. After today, someone might think “I wonder if I can get Judge Walker (or another biased judge) if I file suit.” Yes, it will almost certainly lose (eventually), but that is just more time in court instead of spreading the good news.

http://www.faithpromotingrumor.com Chris H.

Confutus: My right to unreproductive sex, is violated on a regular basis because of marriage. If gay marriage is about sex, they are in for a world of disappointment.

Sorry about the use of the term “win.” Lincoln’s thought is one of my area of specialty and I am sensitive when it is use wrongly.

Enoch: I would be fine with having both as legal classifications and letting people choose (there might also have to be different exit options for both). But I do not think one should be secular and one religious.

el ose:

” I do not think that any appeals court (even the 9th circuit) will look favorably upon this type of argument.”

I do not think you are representing the argument accurately. This is very similar to the logic used by the Supreme Court in the Lawrence decision when they struck down anti-sodomy laws.

Thank you for your biased comment.

JOHN WILLIS

In regards to comment # 22, this is one of the parade of horribles that was trotted out in the proposition 8 debate.

There are well established Supreme Court Cases such as Amos v. Presiding Bishopric (which allowed the Church to dismiss a maintainance employee who did not hold a temple recomend) and Dale v. Boy Scouts of America ( upholding the right of the Scouts to exclude gays from membership) which would allow the church to refuse to marry gays in the temple and excommunicate gays for homosexual behavoir.

These precedents were not affected by Judge Walker’s decision today. A lawyer certainly could of filed a lawsuit challenging the churchs position on how it treats gays yesterday and he could file the same suit tommorrow.

Both suits would have the same chance of sucess—zero.

Bro. Jones

#24 Exactly. Besides, if passage of the 14th Amendment didn’t force us to extend the priesthood to Blacks, and if Loving v. Virginia didn’t force us to allow interracial marriage in the temple, then this won’t have any effect on LDS policies towards homosexuals.

LRC

If an LDS judge cannot set aside his/her religion in order to make a judgment based on the Constitution rather than the Bible/Book of Mormon/Conference Report says, that judge does not deserve to remain in a position of legal power. An appellate judge’s job is to decide if, based on the facts presented in a particular case, whether a lower court judge correctly applied the law. If the appellate judge’s legal position is/will be clouded by his/her religious position, he/she should step away from the bench.

el oso

Chris H, The Lawrence decision was overturning a very old law that had not been enforced for many years. Although the same constitutional principles will be argued, the fact that this is a recent constitutional amendment of the state will change the strength of the different sides substantially. As for my biased comment, we will see if the full panel of the 9th circuit confirms or overturns this ruling. Are they also filled with the same bias?

JOHN WILLIS, Yes, this is (currently) a hypothetical member of the “parade of horribles.” As I noted above, I believe that the recent ruling will not stand and therefore the threat of fending off legal challenges in this area will likely remain hypothetical.

djinn

el oso, the Lawrence decision was overturning a law that was used on Mr. Lawrence, hence the name of the case. I suggest you read Judge Walker’s decision prior to deciding it is based solely (or even partially) on bias. The Pro 8 side couldn’t and didn’t make any coherent pro-8 arguments, kind of a problem.

http://rainscamedown.blogspot.com SilverRain

It seems to me that the SSM-proponents ought to be focusing on what civil benefits there are to extend marriage privileges to gays, and SSM-opponents ought to be focusing on what civil problems gay marriage produces and whether or not the benefits outweigh the problems.

It also seems that the question of whether or not marriage can constitutionally be forbidden to certain adult groups has already been answered back when polygamy was outlawed.

Justin

The church has issued a statement (clearly prepared in advance) in which it says it “regrets” the decision.

Here is the text of the statement as prepared in advance:

“The Church of Jesus Christ of Latter-day Saints regrets/welcomes today’s decision. California voters have twice been given the opportunity to vote on the definition of marriage in their state and both times have determined that marriage should be recognized as only between a man and a woman. We agree. Marriage between a man and a woman is the bedrock of society.

“We recognize that this decision represents only the opening of a vigorous debate in the courts over the rights of the people to define and protect this most fundamental institution—marriage.

“There is no doubt that today’s ruling will add to the marriage debate in this country, and we urge people on all sides of this issue to act in a spirit of mutual respect and civility toward those with a different opinion.”

http://www.faithpromotingrumor.com Chris H.

el eso,

“As for my biased comment, we will see if the full panel of the 9th circuit confirms or overturns this ruling. Are they also filled with the same bias?”

I was mocking your reference to a biased judge.

http://www.faithpromotingrumor.com Chris H.

Will be on the road till later today. Everyone behave.

djinn

Silverrain, SSM-opponents did their best, in a court of law, to focus “on what civil problems gay marriage produces” and couldn’t think of any. Why don’t you list some?

http://rainscamedown.blogspot.com SilverRain

Because, djinn, I’m not litigating the issue and I have more important things to do with the significant block of time it would take to research the matter properly.

Also, I have -100% desire to “discuss” anything of the kind with you.

djinn

So, I take this as proof that you have no actual reasons to deny gay people the right to marry. As an aside, sorry about not capitalizing the second “R” in your name.

http://rainscamedown.blogspot.com SilverRain

You can take it however you wish to take it, you won’t goad me into a fruitless argument.

djinn

Asking for a reason to deny someone civil rights is not “fruitless argument,” it’s asking for a reason. And you admitted (as it would require hours of research on your part) that you don’t have any reasons right now. OK then.

http://rameumptom.weebly.com Rameumptom

I haven’t read in depth the arguments of the anti-Prop lawyers. However, if this does get struck down due to it being unconstitutional to prohibit certain forms of marriage, then it potentially opens the doors for other marriages, including polygamy again. Suddenly, we have a struggle between the long held and often quoted Reynolds v USA, and the Prop 8 decisions.

Russel.G

Rameumptom, one of the arguments in court from Olsen and Boies was that state sanctioning of marriage has nothing to do procreation or sex, counter to one of the arguments of the pro-Prop 8 counsel. Yesterday’s ruling, if it affirms the Olsen/Boies argument, opens the door to challenges of state prohibitions on marriage due to consanguinity also.

Mark N.

Suddenly, we have a struggle between the long held and often quoted Reynolds v USA, and the Prop 8 decisions.

At the time, the leadership of the Church certainly believed that Reynolds v USA was decided incorrectly.

When did that cease to be the case? Was it really decided correctly?

Latter-day Guy

I think those who worry that gay marriage will have a negative impact on their religious freedoms should see this ruling as pretty much a best case scenario.

Opponents of gay marriage upped the ante after Prop 22 was overturned by the CA S.C. (In re Marriage Cases) on the basis that gay marriage is constitutionally protected as an implied right. Prop 8 constitutionally enshrined an explicit definition of marriage. Since I think that the winds aren’t blowing in favor of prohibiting gay marriage in the long-term (I expected a reversal within a decade or so), the passage of Prop 8 increased the likelihood that when such a reversal finally occurred, it would take the form of explicit constitutional language protecting gay marriage.

When an implied right and an explicit right butt heads, the explicit language tends to win the day. When two explicit rights are in conflict, the situation is a bit more dicey.

Now, because the justification for prohibiting gay marriage I have heard most often is the (completely fallacious) “I’ll lose my freedom of religion” canard, those who really fear such a possibility should not have been so stupid as to put religious freedom and gay marriage on an equal footing.

This most recent ruling resets the situation (this time, federally) by again protecting gay marriage as an implied right.

Personally, I’m not opposed to protecting gay marriage with explicit constitutional language, because I still think it highly unlikely that it would negatively impact religious freedom. Those who do fear such a possibility, though, ought to welcome the Walker decision, and count their blessings.

el oso

djinn, Gay people are not being denied any civil rights that SilverRain or I have by Prop 8.

Latter-day Guy

How deliciously disingenuous.

Mark N.

So, let’s assume this thing goes all the way to the US Supreme Court.

The Supremes, if I understand correctly, can always just say, “We’re not overturning what the Ninth Circuit Court of Appeals decided. We like their decision. We choose to let it stand.”

Right? That’s my take on it, based on the wikipedia’s article on “discretionary review”,

That article states that “98 percent of federal cases are decided at the Appeals level.” Some seem to think that this case is the last thing the Supreme Court wants to take on. Think they’ll bail and let the Ninth Circuit’s judgment stand?

Bro. Jones

#39 – I don’t agree that we could see challenges to bans on consanguinity marriage. Married gay people cannot, without biological intervention, produce offspring. Married cousins (or closer) can–so even if marriage is not entirely about procreation, there’s a demonstrated social harm and public health hazard from allowing siblings to marry. Because the prop-8 ruling focused on the failure of the pro-8 side to show that any harm would be caused by gay marriage, I’m not convinced that it would be valid precedent for a consanguinity suit.

JOHN WILLIS

Re post# 44— It is true that the Supreme court has almost total control over what cases it chooses to hear.However most appeals to the Supreme Court are frivilous. Whatever else this case is it is not frivilous

However if the 9th circuit does uphold Judge Walker’s ruling and the Supreme court chose not to take the case that would be mean that all the states in the 9th circuit (Alaska, Hawaii, Washington, Oregon,Nevada California, Idaho, Arizona) would have to allow gay marriage while the rest of the States which do not allow gay marriage could continue to do so.

As a practical matter the Supreme Court would not let this happen and would basically have to take the case.

Again my prediction is that an 11 judge en banc pannel of the 9th circuit will reverse judge walkers decision and the Supeme Court will not grant review.

There has been a lot of commentary that if the case ended up in the Supreme Court Justice Kennedy would be swing vote. Some have argued that Judge Walker’s opinion is basically a “Dear Tony– Please uphold gay marriage letter”

I am not convinced that the 4 so called liberal justices , (Kagan, Ginsberg, Bryer and Sotomeyer )are all that eager to uphold gay marriage at this time.

Again I very well could be wrong and could be eating a dinner of stewed crow in a a year or two.

Mark D.

It is more than possible that this will backfire for the same sex marriage proponents by creating a Supreme Court precedent to the contrary.

http://www.faithpromotingrumor.com Chris H.

Mark D,

I am not sure of the odds of any possible outcome, but that is possible.

http://www.libertypages.com/clarktech Clark

I’m not attorney and to me it seems like SSM is inevitable if only due to the differing views on it by age. It’s just a matter of time before the vast majority of the country want it. So at best SSM opponents are fighting a rearguard action which is why I find it as an issue hard to get excited about. The ideal situation as I’ve oft said is simply to get the state out of the marriage business entirely. But most social conservatives like the state controlling their view of marriage. So they will inevitable reap what they sowed.

Anyway my big question is that given the logic of the ruling I’ve read how on earth can they say polygamous marriage isn’t likewise constitutional? I know every time someone raises the polygamy question SSM proponents cry “slippery slope fallacy.” But I honestly can’t see how an FLDS person isn’t just as due marriage to a second person if marriage is a right. Anyone want to comment there?

http://www.faithpromotingrumor.com Chris H.

Clark,

I think some could argue that polygamy is damaging to the women in such communities.

That said…this could lead us to revisit such laws.

JOHN WILLIS

In regards to the “gay marriage opens the door for polygamy” question, I would refer you the dissenting opinion of Judge Christine Durham of the Utah Suprme Court in State v. Holm (2006) 137 P.3rd 726. in this case arising out of a conviction of and FLDS man from Colorado City for Polygamy Judge Durham (who is LDS) found that Reynolds case in which the U,S. Supreme court upheld anti polygamy laws was implicitly overuled by the 2003 Lawrence v. Texas case which found anti-sodomy laws unconstitutional.

I think it is a very insightful and well reasoned opinion. However she did not convince any of he fellow Utah Supreme Court Justices or anyone on the U.S. suprme court which denied review.

Even if Justice Durham is right (and I think she is) this does not necessarily mean that a state would have to recognize plural marriages,they just could not prosecute anyone for polygamy.

Food for thought

http://www.libertypages.com/clarktech Clark

Chris, but that’s like saying that because homosexuality is damaging in some communities it ought be banned. That logically just doesn’t work. It’s not fair to judge all polygamists on the basis of the FLDS.

Now if you can say that the FLDS social structure is inherent to polygamy you might have a case. But it seems pretty clear it isn’t and if anything it is the banning of polygamy that tended to lead to the FLDS social structures. As such a defendant might simply say the ban makes things worse and you can’t point to abuse due to the secrecy of polygamy as being the problem of polygamy.

John, once again I’m no lawyer but my suspicious is that judges suffer a lot of confirmation bias. i.e. reasons are viewed as much in terms of what is already believe as their being decisive. Isn’t that the argument of those who think the Supreme Court follows social developments rather than leads them? I actually recall Obama making that argument when he was still teaching school.

http://www.faithpromotingrumor.com Chris H.

Alright, I decided to use the nuclear option on the cousin marriage thread. We shall call it perma activism.

http://www.faithpromotingrumor.com Chris H.

Clark, I am not saying this is the case. I could care less about the FLDS, but polygamy in other parts of the world often is an outgrowth of extreme female oppression. Maybe polygamy within a liberal democracy could be allowed…

http://www.libertypages.com/clarktech Clark

Isn’t marriage in general in most of the rest of the world an outgrowth of extreme female oppression? And how is that relevant within the US?

I suspect that if this ruling gets upheld (and while I’m no lawyer, I suspect it’ll depend as a practical matter on no conservative justices retiring in the next few years) then polygamy will be challenged within 5 years.

Mark N.

God works in mysterious ways:

Maybe the participation by the LDS in promoting Prop 8 helps to cause a backlash against religions intruding too much into the political arena, which, in turn, results in Prop 8 being declared unconstitutional by the SC, which, in turn, results in Reynolds v US being overturned, and thereby results in the restoration of the right to have plural marriages, which (unless I am mistaken) is what the Church of 120 years ago said was what should have been the correct result.

Has the Church ever come out and said officially (in hindsight) that Reynolds v US really was decided correctly after all? It never has, so far as I’m aware, but I’m no historian.

http://ethesis.blogspot.com/ Stephen M (Ethesis)

the outcome of the … case depends on which judges are on the three judge panel.

Gee, that is always true.

http://ethesis.blogspot.com/ Stephen M (Ethesis)

I might also argue that the rights to self defense and religious freedom are rather more fundamental than the right to engage in … any penumbrae right/b>

Interesting how implied or shadow rights have become stronger, in some sense, than express rights, which one might argue should cast as large of a shadow.

I’m still thinking about it.

Both suits would have the same chance of success—zero.

Just as DOMA was to ensure that suits of the kind ruled on today would have a zero chance of success?

Just as much litigation results in no cost or expense?

I’m sorry. I litigate, sometimes in areas where the law is crystal clear. As long as I’m willing to let hearings go on off the record I will get some judges who tell me that they just will not follow the relevant law. If I want to get a different legal ruling, take it up with the court of appeals after a trial.

But, this will keep people paying attention to courts for a while.

djinn

“I might also argue that the rights to self defense and religious freedom are rather more fundamental than the right to engage in … any penumbrae right.” The 14th amendment is hardly a penumbral right. Or do you still mourn the loss of slavery?

http://www.myspace.com/7558749 Michael Ejercito

Did anyone on the Court vote to grant cert to State v. Holm ?

JOHN WILLIS

In response to comment # 60. The short answer is no. The court did ask the State of Utah to file a brief when it initally declined to do so when the petition for cert was filed.

http://www.myspace.com/7558749 Michael Ejercito

So not even Justice Kennedy was willing to consider how Lawrence applies to laws against bigamy.

JOHN WILLIS

Apparently not at this time

JOHN WILLIS

FYI— Judge Walker declined to issue a stay. He did stay his order until August 18 to allow time for the 9th circuit to consider a stay. I suspect the 9th circuit will issue a stay.

There has been a suggestion made that the three judge pannel who will hear an appeal will be three judges who heard an earlier proceedural appeal of this case. All three of these judges are Clinton appointees.

It has even been suggested that the ninth cicuit will decline to hear an appeal at all because the supposed defendants in this case, Governor Schwatznegger and attorney general Jerry Brown have accepted the district court’s opinion.

The case was actually defended by an anti gay marriage think tank, not the state of California.

My feeling is that the ninth circuity will find a way around any proceedural and standing issues and will hear the appeal.

Again I think whatever a three judge pannel rules and whoever is on the pannel the case will be heard by an en banc pannel. My prediction that the en banc pannel will reverse the disrict court and the SUpreme Court will decline review still holds.

Again , stay tunned for further developments which could easily prove me wrong on any and all of my predictions.

Mark N.

There has been a suggestion made that the three judge pannel who will hear an appeal will be three judges who heard an earlier proceedural appeal of this case.

I had read that the three-judge panels are selected at random by a computer program. Are they refusing to do that for this case?

JOHN WILLIS

Before the trial started Judge Walker wanted to televise the trial. The defendnats objected, this ruling went to the Ninth Circuit and then to the U.S. Supreme Court which held that the hearing could not be televised.

What has been suggested is that the three judge pannel(which was randomly selected) which heard the issue of wether or not the trail should be televised should now hear the substantive appeal of Judge Walker’s decision.

The argument is that once a pannel hears a case on any issueit should hear all other appeals. Those who are more familar with ninth circuit proceedure can let us know if this is likely to happen in this case.

JOHN WILLIS

Re. my last post— Go to www,volkoh.com and the post by Orrin Kerr for a discussion of this possibility

http://silusgrok.blogspot.com/ Silus Grok

@Lawyers: From a number of angles, it appears that the defense team just phoned the whole thing in, which gives me pause: doesn’t an appeal have to refer only to the cases presented, and not any substantive reframing? Aren’t we stuck with the shite the defense team offered the first time around?

@Djinn: there’re reasonable arguments that the 14th Amendment isn’t a valid test for this case, as everyone (who finds a willing opposite sex partner) can marry. This isn’t about who can marry, it’s about what marriage is.

JOHN WILLIS

In response to post #68

First point —- As I mentioned earlier everyone regardless of what side they are on agrees that the Boises-Olson team out lawyered the anti-gay marriage side. I don’t think this is so much that the other side were bad lawyers but that they had a weak case to begin with.

The secular arguments and evidence against gay marriage just aren’t there. There is no evidence that children raised by gays are any worse off than children raised by staight parents. (For a small piece of evidence that this is the case see the movie The kids are all right) The constantly repeated claim that single parent kids are worse off than kids raised by two parents is not really relevant to the issue of kids raised by gay parents and straight parents. Kids raised by single parents, typically women are much more likely to be poor than kids raised by two parents. The Socio-econmic status of the parents , gay or straight single or two parents is most important factor in positive outcomes for kids.The evidence presented in this case clearly shows this and the anti-gay marriage side did not present convincing arguments to refute this point.

On appeal the court will be stuck with the record developed at trial and it is not a good one for the anti-gay marriage side.

If you are interested in a sound analysis of the problems facing the insitution of marriage in the United States rather than just slogans read Andrew Cherlin’s book THE MARRIAGE GO ROUND. it should be clear to an objective observer who considers the arguments and evidence in this book that the existence or non-existence of gay marriage in the United States has very little to do with the strength of the institution of marriage in this country.

As I mentioned in the first post I made on this blog the church needs to seriously consider the possibilty that there are not good legal and secular argements against gay marriage .

We DO have sound theological arguments not to practice gay marriage in our faith . I think we have better theological grounds to oppose gay marriage within our faith than the protestant or catholic churches.

I would question wether our theological position is the stuff of which public policy should be made.

Perhaps we should concentrate on legislative lobbying for statutes providing for “opt out” provisions when homosexuality and gay marriage are discussed in K-12 public schools if that is a real problem.

As I mentioned earlier I think the free exercise, free speech and establishment clauses of the First Amendment as interpreted in numerous Supreme Court Cases provide ample protection for the church to preach against homosexuality, excommunicate sexually active gays, and refuse to preform Gay marriages in our Chapels and Temples.

In regards to the second point about the 14th amendment not being violated by laws against gay marriage because gays can marry, only to someone of the opposite sex—- This argument was put forth by the persons who supported laws banning interacial marriage. Blacks were not denied the fundmaental right to marry the reasoning went, they could marry, but only to other Blacks. This argument was rejected unanimously by the Supeme court in the 1967 Loving v. Virginia case.

I have gone on too long but I hope I have given readers of this blog something to think about.

http://www.faithpromotingrumor.com TT

John Willis, I’ve appreciated your legal insight here to the workings of the court and the details of this case. Thanks for sharing!

JOHN WILLIS

You’re welcome

http://silusgrok.blogspot.com/ Silus Grok

Thank for reconfirming my understanding that the appeals process will be based largely (if not exclusively) on the facts presented in the first go-round. Which doesn’t bode well for appeal.

As a gay man who would have voted YES on 8, had he lived in California — and as someone who continues to see the validity of the Prop 8 case — it saddens me that the defense did such a poor job, here. I disagree that there’s not case to be made, though. But I don’t think the compelling case to be made will get much of a public airing.

JOHN WILLIS

the ninth circuit issued a stay late this afternoon. There will be some sort of hearing before the nith circuit in a new three judge pannel the first week in December.

This affirms my earlier prediction that the nith circuit will find a way around the standing issues and hear an appeal on the merits.

Stay tunned for further devlopments and watch my predictions be shot down.